Beyond ‘Loss of Chance’ – Valid Medical Negligence Claims When A Cure Was Already Unlikely

By: Mark A. Abramson

I. Introduction:
In “‘Two Roads Diverge . . .’ Comparing ‘Loss of Chance’ in NH & MA,” NH Bar News, Vol. 20, No. 5 (October 16, 2009), Brad Holt seemed to argue that the New Hampshire legislature has barred all medical negligence claims when the plaintiff’s pre-negligence prognosis for survival is less than 50%. I disagree. The statute at issue, RSA 507-E:2, III, actually permits such a plaintiff to pursue a number of damage claims. Thus, malpractice cases involving the failure to timely diagnose a fatal disease should not be rejected out of hand. They must be carefully assessed and considered on their own unique facts.

II.Permissible Claims:
RSA 507-E:2, III begins by declaring that a plaintiff’s burden of proof in a medical negligence case is “not satisfied by evidence of loss of opportunity for a substantially better outcome.” However, it goes on to state that
this paragraph shall not bar claims based on evidence that
negligent conduct by the defendant medical provider or
providers proximately caused the ultimate harm, regardless
of the chance of survival or recovery from an underlying

The phrase “ultimate harm” is not defined in the statute. However, for the provision to have any meaning it must refer to any provable harm other than a diminished statistical chance of survival (i.e., a “lost opportunity”). After all, a woman whose breast cancer is misdiagnosed and allowed to grow and spread for two years does not merely suffer a statistical diminution in her survival chances. She probably suffers physical pain or discomfort that she would not otherwise have experienced. She may have to undergo different treatment modalities that are more costly and more unpleasant than those she would have needed if not for the defendant’s negligence. She may miss time from work that she would not have missed or experience periods of debilitation that she would not have experienced. She may suffer fear and anxiety that can be directly related to the delay in diagnosis as opposed to the underlying disease itself. And she may suffer a decreased life expectancy. These are all “harms” that are proximately caused by the defendant’s negligence and they are distinct from a “lost opportunity” claim.
The statute also permits recovery when a person with a less-than-even chance of survival dies, not as a result of the underlying disease, but as a direct result of negligent medical care. A prime example of this was in the news several years ago when a young girl with a grim prognosis died after receiving a mismatched heart-lung transplant. Even though she probably would have died even if she received appropriate medical care, her actual death was caused by medical negligence rather than the underlying disease. Under R.S.A. 507-E:2, III, her estate would be allowed to make a wrongful death claim because, under the unique circumstances of that case, the “ultimate harm” – death – was proximately caused by the defendant’s negligence.
One claim that is clearly available under RSA 507-E:2, III is the claim for fear of a future cancer recurrence even if a recurrence is not statistically probable. In Smith v. Boston & Maine Railroad, 87 N.H. 246 (1935), our Supreme Court upheld the right of a woman to recover damages for her fear that she would become paralyzed as a result of injuries she received when she was struck by a train. The court emphasized that the plaintiff was entitled to recover even if her fear was mistaken and even if the fear regarded a possibility rather than a probability. Id. at 258. The fear of a future recurrence is independent from the loss of opportunity for a better outcome so it is not barred by RSA 507-E:2, III.
The same is true of a patient’s claim for a diminished life expectancy. A diminished life expectancy claim is different than a loss of opportunity claim because the plaintiff is able to introduce evidence that it is more likely than not that she will die sooner than she otherwise would have but for the defendant’s negligence. This claim has not been addressed by our Supreme Court but it has been recognized in a number of other states. See Bauer v. Memorial Hospital, 879 N.E.2d 478 (Ill.App. 2007), appeal denied, 888 N.E.2d 1182 (Ill. 2008) (collecting cases). Since it is distinct from the lost opportunity for a better outcome, a claim for a shortened life expectancy is permissible under RSA 507-E:2, III.
New Hampshire law permits a victim of medical negligence to pursue a number of damage claims even if there is insufficient evidence to prove that he or she likely would have been cured but for the medical error. The claim for “lost opportunity” may have been barred by RSA 507-E:2, III but the statute permits claims for harm caused by the unchecked progression of the disease, fear of future harm, and diminished life expectancy, among others. Accordingly, each case must be carefully assessed on its own merits.